First Principles (COL)

Threlfall v. Carleton University, 2019 SCC 50 (CanLII)

Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ.

Held (Moldaver, Côté and Brown JJ. dissenting): The appeal should be dismissed.

The judgment of Wagner C.J. and Abella, Karakatsanis, Gascon, Rowe and Martin JJ. was delivered by The Chief Justice and Gascon J. —

[26] We note that while the Plan also provides that it is to be “governed and construed in accordance with the laws of the Province of Ontario” (s. 14.09(3)), given the absence of any ambiguity, there is no need to consult these laws for the meaning of these terms. In any event, it is well established that in the absence of any evidence being led on the law of the foreign jurisdiction (Ontario), the trial judge was required to apply the law in force in Quebec on the interpretation of these terms (art. 2809 C.C.Q.; Tolofson v. Jensen; Lucas (Litigation Guardian of) v. Gagnon, 1994 CanLII 44 (SCC), [1994] 3 S.C.R. 1022; Pettkus v. Becker, 1980 CanLII 22 (SCC), [1980] 2 S.C.R. 834, at pp. 853-54; S. G. A. Pitel and N. S. Rafferty, Conflicts of Laws (2nd ed. 2016), at pp. 249-50).

[40] Article 85 C.C.Q. is clear on its face that the presumption of life will be rebutted by proof of death made within the seven-year period. The presumption of life is therefore, in the terminology of art. 2847 C.C.Q., a “simple” presumption. It is a legal presumption of fact (the fact that the absentee is alive) lasting for seven years, which may be rebutted by proof to the contrary (i.e., proof of death) or confirmed by the absentee’s return (Deleury and Goubau, at para. 40). As this Court recently noted in another context, a simple presumption as to the existence of a right “must yield where . . . there is proof that the right does not exist” (Ostiguy v. Allie, 2017 SCC 22, (2017) 1 S.C.R. 402, at para. 50).

Somers v. Fournier, 2002 CanLII 45001 (ON CA)

[55] English courts have also recognized a distinction between laws which deny a remedy in respect of a particular head of damage in negligence (a substantive law) and those which affect the quantification of damages concerning a particular head of damage (a procedural law). (See Chaplin v. Boys, [1969] 2 All E.R. 1085, [1971] A.C. 356 (H.L.); Coupland v. Arabian Gulf Petroleum Co., [1983] 2 All E.R. 434 (Q.B.); and Caltex Singapore Pte. Ltd. v. B.P. Shipping Ltd. , [1996] 1 Lloyd's Rep. 286 (H.C.J.), overruled on other grounds in Herceg Novi v. Ming Galaxy, [1998] 4 All E.R. 238 (C.A.).)